Mussolino v. Coxe Bros. & Co., Inc.

• Decision Date: 26 May 1947
• Docket Number: 3128
• Parties: Mussolino et ux., Appellants, v. Coxe Bros. & Company, Inc
• Court: Pennsylvania Supreme Court

53 A.2d 93

357 Pa. 10

Mussolino et ux., Appellants, v. Coxe Bros. & Company, Inc

No. 3128

Supreme Court of Pennsylvania

May 26, 1947

Argued April 14, 1947

Appeal, No. 41, Jan. T., 1947, from judgment of C.P., Luzerne Co., Oct. T., 1943, No. 934, in case of Vincent Mussolino et ux. v. Coxe Bros. & Company, Inc. Judgment reversed.

Trespass for wrongful death. Before FLANNERY, J.

Compulsory nonsuit entered. Motion to take off nonsuit refused. Plaintiffs appealed.

Judgment reversed and new trial awarded.

G John Bruger, with him Frank P. Slattery, for appellants.

Leroy Long, with him James P. Costello, Jr., for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES JJ.

OPINION

MR. JUSTICE LINN

Plaintiffs appeal from the refusal of their motion to take off a compulsory nonsuit. They sue for the death of their child, aged two years and eleven months, drowned in a pond maintained by defendant. They lived in a house on the east side of Fern Street in the Borough of Freeland. Defendant's land is on the west side of the street, Fern Street being the boundary between the borough and Foster Township. The pond, about 75 feet wide and 1000 feet long, has remained on the land from which coal was removed by a stripping operation many years ago. Almost the entire pond is surrounded by a bank of dirt and rock about 35 feet high. At the eastern end of the pond, at a point nearest plaintiffs' house, there is neither bank nor barrier. The distance from that point to plaintiffs' house is 410 feet and it is at that point where the child is said to have drowned. Between the west side of Fern Street and the pond is open ground. A path extends from Cedar Street (a borough street northwest of plaintiffs' house) across defendant's land in a southeastward direction and passes the end of the pond at a distance variously given; one witness stated it to be five feet. That path is less than 400 feet from plaintiffs' house and has been used for many years by school children going to and from the borough to the Foster Township Grade School in the township a short distance south of plaintiffs' house.

Mrs. Mussolino testified that the child had been playing in their front yard with other children from the neighborhood. She does not appear to have known that the child left their premises. There is no evidence by anyone who saw the child go to the pond.

Plaintiffs contend that they have brought their case within section 339 ^[1] of the Restatement of the Law of Torts, recently considered in Altenbach v. Lehigh Valley R.R. Co., 349 Pa. 272, 37 A.2d 429, and in Allen v. Silverman, 355 Pa. 471, 50 A.2d 275; that, from the circumstances, the jury would have been justified in finding that defendant maintained on its land a condition requiring reasonable precaution to guard against injury to children on the land by express or implied permission. After averring defendant's ownership, the plaintiffs averred "(5) The defendant Company as a result of stripping operation... caused a basin to be excavated... accumulating the surface of the soil around the basin, with the exception of the Eastern boundary of the said basin.

"(6) The said basin on November 9, 1942, was filled with accumulation of surface water with no guard rail or any other protection at its Eastern boundary.

"(7) On the said 9th day of November, A.D. 1942, at about 2:30 o'clock P.M., Russell Mussolino, an infant son of the plaintiffs who at that time was two years eleven months and five days old, fell in the water at the said stripping hole and lost his life by drowning.

"(8) The death of the said Russell Mussolino, infant son of the plaintiffs, was caused through the negligence of the defendant Company in failing to provide a guard rail, fence, embankment or some other protection at the Eastern boundary of the said stripping hole and in failing to maintain the services of a watchman on the premises."

The statement of claim is ambiguous in not averring clearly whether the child was on the premises by defendant's permission, express or implied, or whether death resulted from acts of defendant that might be characterized as wilful or wanton. By proceedings under the Practice Act of May 14, 1915, P.L. 483, as amended, defendant, in advance of trial, might have tested the sufficiency of the statement or might have required the plaintiffs to plead more specifically: Sections 20 and 21; ^[2] compare Cameron v. Fishman, 291 Pa. 12, 139 A. 383. Defendant did nothing to clarify the issues but went to trial on the issues made by the statement of claim and the affidavit of defense which neither answered nor denied the averments of plaintiffs' statement. When plaintiffs proposed to show that their child was on the premises by defendant's implied permission, defendant objected on the ground that the fact was not averred in the statement of claim. Plaintiffs' counsel asked about the pathway across defendant's premises, passing the pond and about children of tender years playing there. On defendant's objection to proof of the fact, plaintiffs moved to amend^[3] by averring that the premises were used as a playground. Leave to amend was given, defendant's counsel stating that he would not plead surprise. After some testimony supporting the fact averred by the amendment had been received, counsel for the defendant renewed his objection "... in view of the fact that this is an attempt to establish a permissive way, and a permissive way is distinct from a playground. THE COURT: If I recall correctly the amendment included the pathway used by the children. MR. SLATTERY: No, the amendment did not, your honor, please, but it is now introduced in this testimony showing the accessibility of children to the playground. THE COURT: We won't permit permissive use of the right-of-way unless there is an averment. MR. SLATTERY: Well, it is not very material anyhow. THE COURT: All right. Then the objection is sustained. Exception noted." ^[4]

Some misunderstanding seems to have existed. Apparently plaintiffs proposed to show that part of defendant's land between Fern Street and the accessible end of the pond had been frequented by playing children for such a long time as to fix defendant with knowledge of that fact and to impose the measure of care stated in section 339 of the Torts Restatement. Defendant objected on the ground that the statute of limitations had run and that to...